The new public health despotism Draconian rules are suppressing our humanity

In the Hobbesian formula, the Leviathan relies upon fear to suppress pride. It is pride that makes men difficult to govern. It may be illuminating to view our Covid moment through this lens and consider how small moments of humiliation may be put in the service of a long-standing political project, or find their meaning and normative force in it.

Specifically, to play one’s part in Covid theatre, as in security theatre at the airport, is to suffer the unique humiliation of a rational being who submits to moments of social control that he knows to be founded upon untruths. That these are expressed in the language of science is especially grating.

We need to consider the good faith intellectual positions that greased the skids for our slide into an illiberal form of governance. For, in addition to the political opportunism surrounding Covid, there were also well-meaning efforts to control the pandemic by altering people’s behaviour. The question is: what were the means employed for doing this, and what was the view of human beings that made such means attractive? What we got, in the end, without anyone really intending it, may fairly be called a propaganda state that seeks to manipulate without persuading.

Here, “science” may be plainly anti-scientific, according to the circumstances. The word does not name a mode of inquiry, rather it is invoked to legitimise the transfer of sovereignty from democratic to technocratic bodies, and as a device for insulating such transfers from the realm of political contest. Can this be squared with the idea of representative government?

The Columbia law professor Philip Hamburger writes about the administrative state. It consists of a vast array of executive agencies that empower themselves to place people under binding obligations without recourse to legislation, sidestepping the Constitution’s separation of powers. In theory, only Congress can make laws. Its members are subject to the democratic process, so they must persuade their constituents, and one another. But as the administrative state has metastasised, supplanting the lawmaking power of the legislature, unelected bureaucrats increasingly set the contours of modern life with little accountability. They stake their legitimacy on claims of expertise rather than alignment with popular preferences. This trajectory began a century ago in the Progressive era, and took large strides forward during the New Deal and Great Society.

Hamburger puts this in historical context with other forms of unaccountable power, such as the notorious Star chamber of James I: “Ever tempted to exert more power with less effort, rulers are rarely content to govern merely through the law, and in their restless desire to escape its pathways, many of them try to work through other mechanisms.”

The “restless desire to escape” the inconvenience of law is one that progressives are especially prone to in their aspiration to transform society: merely extant majorities of opinion, and the legislative possibilities that are circumscribed by them, typically inspire not deference but impatience.

It is as beings capable of reason that the legislature is supposed to “represent” us. The judicial branch regards us in the same light. When a court issues a decision, the judge writes an opinion in which he explains his reasoning. He grounds the decision in law, precedent, common sense, and principles that he feels obliged to articulate and defend. This is what transforms the decision from mere fiat into something that is politically legitimate under the premises of republican government, capable of securing the assent of a free people. It constitutes the difference between simple power and authority.

The Nineties saw the rise of new currents in the social sciences that emphasised the cognitive incompetence of human beings. The “rational actor” model of human behaviour (a simplistic premise that had underwritten the party of the market for the previous half century) was deposed by the more psychologically informed school of behavioural economics, which teaches that our actions are largely guided by pre-reflective cognitive biases and heuristics. These biases tend to be functional, both in the sense that they reflect general patterns of reality, and because they offer “fast and frugal” substitutes for deliberation, which is a slow and costly activity. An adjacent thought can be found in phenomenological writers such as Merleau-Ponty and Hubert Dreyfus: the kind of thinking that consists of chains of propositional statements and logical inferences is a special case, not typical of animals with bodies. We are one such animal, and our everyday coping with the world must have a certain fluency to it, if we are not to be paralysed.

The developments in psychology that gave rise to behavioural economics provided a necessary revision to our under­standing of the human person, in the direction of realism. For the narrowly economistic “rational market actor” anthropology of the choosing self was indeed inadequate.

In their book Nudge, Richard Thaler and Cass Sunstein point out that individual choices don’t usually happen in a vacuum. They are often sculpted by a “choice architecture” that may be more or less deliberate in its design, but generally operates beneath the threshold of awareness, as a kind of background cognitive scaffolding. A classic example is the placement of items on grocery store shelves. High margin items tend to be placed at eye level, while impulse purchases are placed in the slow-moving checkout line. Sugary cereals are placed at a child’s eye level, so the kid will nag his mother for some Lucky Charms.

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The new public health despotism

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Why not exploit the power of choice architecture for the public good, and replace the Lucky charms with Brussels sprouts? Doing so has an obvious appeal. It is a non-coercive way to improve people’s behaviour without having to persuade them of anything. This offered obvious encouragement to the paternalistic tendencies of the administrative state. Following the publication of Nudge in 2009, both the Obama White House and the government of David Cameron in the UK established “nudge” units to operationalise the insights of behavioral economics. The examples that the nudgers like to offer by way of illustrating their techniques are uncontroversial – things like increasing the savings rate, or getting people to stop smoking.

As Thaler and Sunstein like to point out when they are on the defensive, they didn’t invent nudging, they merely gave it a name and articulated its principles in the language of social science. But this articulation has been highly consequential. When something banal is presented as a scientific finding, it becomes available to institutions, part of their toolkit for “evidence based interventions.”

“Behavioral insight” teams inspired by Nudge are currently operating in the European Commission, the United Nations, the WHO and, by Thaler’s reckoning, about 400 other entities in government and the NGO world, as well as in countless private corporations. It would be hard to overstate the degree to which this approach has been institutionalised.

In a recent interview with UnHerd, Thaler insisted that the nudge is simply a tool, one that can be used for good or ill. But, as with so many technological innovations, the availability of the tool alters the range of possibilities. Indeed, it alters the way objects in the world show up for the one who holds the tool. The innovation achieved here, at scale, is in the way government conceives its subjects: not as citizens whose considered consent must be secured, but as particles to be steered through a science of behavior management that relies on our pre-reflective biases.

One example that Thaler and Sunstein call attention to, in their advice to administrators, is the “emerging norm” bias. Norms of various descriptions have more or less purchase on us, for reasons one can speculate on endlessly. But if you tell people that some new norm is emerging, they are more likely to identify with it. It seems most people don’t want to be on the Wrong Side of History. So announcing the emergence of some new norm can become a self-fulfilling prophecy, a means of steering the herd. This holds obvious attraction for the vanguardist. It seems to promise that one can mark out the direction of history, and thereby make it so.

Such vanguardists may be ideologues, or they may simply be institutional players who have internalised the expansionary logic of the bureaucracies who employ them. The hygiene state propagandises a “new normal” of social distancing and face covering. Here is an outlandish medical morality of social atomisation, presented as something inevitable.

While economics was getting psychologised in the 1990s, a parallel development was happening in political science. Before getting into this, consider the larger frame. The Soviet Union had just collapsed. This placed “liberal-democracy” in a new situation, or rather returned it to a situation that had obtained in the mid-19^th century.

Liberalism and democracy are two distinct things, not entirely at ease with one another. Their differences were submerged during the Cold War when they had a common enemy in Soviet communism, just as they had been submerged previously when they had a common enemy in monarchy.

When monarchy was finally eliminated as a rival to democracy in the revolutions of 1848, the alliance of convenience between liberalism and democracy threatened to break down. By 1861, John Stuart Mill was terrified that democratic majorities would constrain a liberalism consisting of “experiments in living.” The freedom of educated elites to explore new cultural terrain and projects of self-cultivation would require jettisoning religious interdictions, as well as the parochial affections and commitments by which the masses took their bearings. The basic problem was that such a liberatory project gets its political legitimacy by allying itself with democracy — first against monarchy, and then against communism.

As Adrian Vermeule puts it, liberalism fears that its dependence on and fundamental difference from democracy will be exposed if a sustained course of non-liberal popular opinion comes to light. The solution is to offer an idealised concept of democracy, sharply distinguished from “mere majoritarianism.” By this device, the liberal may get to preserve his self-understanding as a democrat. This can become quite strained, as in the reflex to call the popularly elected governments of Poland and Hungary “antidemocratic”. When Pew did opinion polling in Afghanistan a decade ago and found that something like 95% of respondents expressed a preference that sharia law should be the law of the land, this was not allowed to interrupt the conviction that making Afghanistan “democratic” would require a feminist social transformation. That is, an explicitly anti-majoritarian revolution.

Back to the Nineties. The hot career track for my cohort of Ph.D students in the political science department was to build up a theoretical edifice to strengthen the hyphen in “liberal-democracy”, kind of like Ptolemy’s addition of epicycles and other intricacies to the geocentric model of the solar system in an effort to save it from an accumulating body of observation. The political theorists of my generation did this under a rubric they called “deliberative democracy.” There was a quarrel at the time between Habermas and Rawls, and it was Rawls who insisted on this crucial point: if you could just establish the right framing conditions for deliberation, the demos would arrive at acceptably liberal positions. We should be able to formalise these conditions, it was thought. And conversely, wherever the opinions of the demos depart from an axis running roughly from the editorial page of the New York Times to that of the Wall Street Journal, it was taken to be prima facie evidence that there was some distorting influ­ence in the discursive conditions under which people were conducting their thought processes, or their conversations among themselves. The result was opinion that was not authentically democratic (i.e., not liberal).

Obviously, the prospect of populism was already causing some anxiety. Propping up “liberal-democracy” as a conceptual unity would require a cadre of subtle dia­lecticians working at a meta-level on the formal conditions of thought, nudging the populace through a cognitive framing operation to be conducted beneath the threshold of explicit argument. I remember there was one grad student in my department who was running experiments on focus groups, seeing if he could get them to think the right thoughts.

To my unsympathetic eye, this looked like an exercise in self-delusion by aspiring apparatchiks for whom a frankly elitist posture would have been psychologically untenable. I don’t know if that grad student got his subjects to think the right thoughts. But I have little doubt he got them to say the right thoughts, and thereby lend those thoughts the demotic imprimatur he was looking for. Maybe that was good enough. Political correctness might be understood as a device that became necessary for liberalism to continue to claim the mantle of democracy, even as prosecution of its program would require increasingly antidemocratic measures.

As it turns out, the best way to secure the discursive conditions for “deliberative democracy”, and install a proper choice architecture that will nudge the demos in the right direction, is to curate information. Soon, the Internet would both enable and undermine these aspirations.

Of all the platform firms, Google is singular. Its near-monopoly on search (around 90%) puts it in a position to steer thought. And increasingly, it avows the steering of thought as its unique responsibility. In an important article titled “Google.gov”, law professor Adam J. White details both the personnel flows and deep intellectual affini­ties between Google and the Obama White House. Hundreds of people switched jobs back and forth, some of them multiple times, between this one firm and the administration over eight years – an unprecedented alignment of corporate power and the executive branch. White writes that both aspired to “reshape Americans’ informational context, ensuring that we make choices based only upon what they consider the right kind of facts—while denying that there could be any values or politics embedded in the effort.”

One of the central tenets of progressives’ self-understanding is that they are pro-fact and pro-science, while their opponents (often the majority) are said to have an unaccountable aversion to these good things: they cling to fond illusions and irrational anxieties. It follows that good governance means giving people informed choices. This is not the same as giving people what they think they want, according to their untutored preferences. Informed choices are the ones that make sense within a well-curated informational context.

There is a distinct epistemic style that progressive politics took on during the mutual infatuation of Google and Obama. Here the idea of neutrality or objectivity is deployed to assert an identity between what liberals want to do and the interests of demos. This identity reveals itself once distortions of objective reality are cleared away.

Speaking at Google’s headquarters in 2007, Obama said he would use “the bully pulpit to give them good information.” The bully pulpit has previously been understood as a perch from which to attempt persuasion. Persuasion is what you do if you are engaged in democratic politics. Curating information, on the other hand, is what you do if you believe dissent from your outlook can only be due to a failure to properly process the relevant information. A cognitive failure, that is.

In the Founders Letter that accompanied Google’s 2004 initial public offering, Larry Page and Sergey Brin said their goal is “getting you exactly what you want, even when you aren’t sure what you need.” The perfect search engine would do this “with almost no effort” on the part of the user. In a 2013 update to the Founders Letter, Page said that “the search engine of my dreams provides information without you even having to ask.” Minimizing the user’s active input, Google will answer, not the question you might have posed yourself, but the question you should have asked. As Eric Schmidt told the Wall Street Journal, “[O]ne idea is that more and more searches are done on your behalf without you having to type. . . . I actually think most people don’t want Google to answer their questions. They want Google to tell them what they should be doing next.”

The firm will provide a kind of mental scaffold for us, guiding our intentions by shaping our informational context. This is to take the idea of trusteeship and install it in the infrastructure of thought.

But this effort has more or less failed, due to the proliferation of unauthorised voices on the Internet. The pandemic prompted clumsy efforts to regain control, and these have often backfired.

If we credit “public health” with any purposeful coherence, we might suppose the confusion it sowed was an unintended effect of approaching behavior modification as a game theoretical problem. In game theory, one assumes that people are self-interested maximizers of their own utility and tries to manipulate them based on this premise, which is sometimes best accomplished by sending deceptive signals. For example, early in the pandemic we were told masks don’t work, because the priority was to preserve a scarce supply of masks for health workers. More recently, the relative risks of the virus versus the vaccine for different demographics has been dismissed as irrelevant, for the sake of combatting vaccine hesitancy. But such deceptions, however well-intended, can succeed only if you have control over the flow of information. So once you go down this road of departing from the truth, you’re committed to censorship and rigorous narrative enforcement, which is very difficult to do in the Internet era.

The absurdities of COVID theatre could be taken as a tacit recognition of this state of affairs, much as security theater pointed to a new political accommodation after 9/11. In this accommodation, we have accepted the impossibility of grounding our practices in reality. We submit to ossified bureaucracies such as the TSA that have become self-protective interest groups. They can expand but never contract, and we must pretend reality is such as to justify their existence. Covid is likely to do for public health what 9/11 did for the security state. Going through an airport, we still take off our shoes – because twenty years ago, some clown tried to light his shoe on fire. We submit to being irradiated and groped, often as not. One tries to put out of mind facts such as this: in independent audits of airport security, about 80-90% of weapons pass through undetected. The microwave machine presents an imposing image of science that helps us bury such knowledge. We have a duty to carry out an ascetic introspection, searching out any remaining tendencies toward rational pride and regard for the truth, submitting them to analysis. Similarly, the irrationality of the Covid rules we comply with has perhaps become their main point. In complying, we enact the new terms of citizenship.

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